However, in administering Canadian law they become ‘agency Indians’ for the Canadian state.” For example, the traditional role of elders in Aboriginal communities has been that of teachers and healers, but under the indigenized Canadian justice system, they have become more like judges who aid in sentencing. Appeals by the Crown are only available for errors of law – not on more general or fact-specific grounds of miscarriage of justice or unreasonable verdict. Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. It was also found that Aboriginal people on average faced 25 per cent more charges than non-Aboriginal people, and that Aboriginal people had only a 21 per cent chance of being granted bail compared with 56 per cent for non-Aboriginal people. Unfortunately, the Harper government seems disinterested in rectifying the situation. The relationship between Aboriginal people and the Canadian criminal justice system is broken, and evidence is mounting that a radical change is necessary. Their experiences within the system are interwoven with issues of colonialism and discrimination. Gladue Courts don't handle trials or preliminary hearings. In a way, that might actually not deal with either the immediate problems we have with juries or the much larger problem we have with the justice system. Taking Indigenous Justice Seriously: Fostering a Mutually Respectful Coexistence of Aboriginal and Canadian Justice 1 Ted Palys, Richelle Isaak & Jana Nuszdorfer Simon Fraser University It has long been recognized that the Aboriginal people and Peoples of Canada have been ill-served by the Canadian justice system. There are basically two kinds of challenges to prospective jurors. The verdict in the Colten Boushie case has provoked outrage across the country and prompted reflection about how the justice system treats Indigenous people. I’m a little worried because the minister of justice has said this requires study. The report also found that Aboriginal people are sentenced to longer terms, spend more time in maximum security or segregation, are less likely to be granted parole, and are more likely to have their parole revoked. Not only did the correctional investigator’s report find “no new significant investments at the community level for federal aboriginal initiatives,” but Sapers has said that the government’s response to his report has been to either disagree with every recommendation or simply reinforce what the correctional service is already doing. About Indigenous Peoples and human rights in Canada In Canada, anti-discrimination legislation exists to protect and advocate for the human rights of Aboriginal peoples. Are there other problems, in addition to the jury selection? An example of this was the method of dealing with “wendigo” spirits. Gall, Gerald L., "Justice Systems of Indigenous Peoples in Canada". http://unsr.jamesanaya.org/visit-to-canada/united-nations-special-rapporteur-on-the-rights-of-indigenous-peoples-to-carry-out-official-visit-to-canada-from-12-to-20-october-2013. Racism in the justice system is the root cause of wrongful prosecutions and the over-representation of Indigenous peoples in prison today. The traditions that are left are fragmentary and watered down, further whitewashing Aboriginal identity. This surface indigenization also damages Aboriginal communities. Before that, in 1998, I was involved in a case called Williams (R v. Williams) where the Supreme Court allowed an Indigenous accused to question jurors about whether they would be biased, whether they would have racial bias against the Indigenous accused. Gladue Courts deal with all criminal offences. A 2010 Environics Institute study found that more than half of urban Aboriginal people had little or no confidence in the justice system and were more than twice as likely as the general Canadian population to feel this way. 1. This July, Paul initiated a Parliamentary petition on creating a national database on police use of force , which disproportionally impacts Black and Indigenous people. Canadian institutions of justice have not merely failed Indigenous peoples but were not designed to protect Indigenous interests to begin with. Katerina Tefft will be presenting on the topic of Aboriginal justice at the Whose Winnipeg? Their 2012 omnibus crime bill, Bill C-10—which imposes mandatory minimum sentences—is expected to carry a price tag of $19 billion. We have the Manitoba Aboriginal Justice Inquiry recommending this in 1991. Restorative justice differs significantly from the current Canadian system in that it focuses on addressing the root cause of the crime, allowing the offender to take responsibility for his or her own actions, repairing the damage done by the crime, and allowing everyone affected by the crime to heal. We know that about 200 people were summoned or actually arrived to serve on the Boushie jury. I don’t think the reform I’m recommending, which is a fairly simple lawyer's sort of reform – I don’t think that's going to achieve reconciliation. Institutions such as the police and the courts have failed Black and Indigenous people, McNeil told a gathering at a YMCA in downtown Halifax. Usually they only handle bail hearings and sentencing hearings. We don’t know how many of those were Indigenous, but all of the evidence points to Indigenous people being under-represented for various reasons among that 200. Canada has a very high remand rate; there is blatant discrimination against Aboriginals because their rate is significantly higher in comparison to their counterparts (Mildren, 2008). How hopeful are you that this is a turning point? In this case it was Mr. Stanley and his lawyer. Moreover, they attempt to appease Aboriginal people by giving the illusion that the system is culturally appropriate and non-oppressive, while hijacking their traditions and spirituality. As I wrote in the Globe and Mail, reform has come too late in the Boushie case. When an accusation has been made against an individual, legal advisers representing plaintiff and defendant confront one another before an impartial judge or jury. I think we need to approach these things on a nation-to-nation basis. Editorial: Canadian justice system continues to fail Indigenous People. Canadian Criminal Justice System By Shaista Asmi Social Connectedness Fellow 2019 Samuel Centre for Social Connectedness www.socialconnectedness.org August 2019 . The Criminal Justice System has set up this certain criteria, which evidently happens to discriminate more against Indigenous peoples just by the virtue of the questions they have asked (LaPraire, 2002). The Supreme Court of Canada has called the overrepresentation of Indigenous people “a crisis in the Canadian justice system ” (Rudin, 2005, p. 5). Earlier this year, the Office of the Correctional Investigator issued a release regarding the incarceration of Indigenous people in Canadian prisons. In 1989, the Report of the Royal Commission on the Donald Marshall Jr., Prosecution on the wrongful arrest, prosecution and imprisonment of a Mi’kmaw man, found that the justice system failed him at every turn due to the fact that he was native. For example, in 2014, a significantly higher proportion of Indigenous people than non-Indigenous people in Canada (aged 15+) reported being victimized in the previous … It’s a huge challenge. Jerome Turner January 16, 2016 Photo: Sean_Marshall. Indigenous people are the most over-represented population in Canada’s criminal justice system. Tunnel vision, eyewitness misidentification, false admissions of guilt, and ineffective assistance of counsel are all more likely to result in a miscarriage of justice if the accused is Indigenous. Since that time, it has failed to live up to its ameliorative intent as evidenced by a steady increase in the rate of over-incarceration. Almost half of the people in Manitoba agree there is a problem with the Canadian justice system when it comes to treatment of Indigenous Peoples according to a recent report in the Winnipeg Free Press ("Manitobans divided on justice system," April 16, 2018). The justice system has failed Indigenous people and it has failed us miserably. Statistics show that the percentage of indigenous people in conflict with the justice system is extreme and in many places those numbers may be on the rise. Given that there is going to be under-representation of Indigenous people among prospective jurors, something like the peremptory challenge becomes even more pernicious because, as in this case, it appears like it was used to keep all the Indigenous people off the jury. Systemic racism in our justice system is: The number of female Aboriginal inmates has increased by 86.4 per cent in the last 10 years. Canada has a very high remand rate; there is blatant discrimination against Aboriginals because their rate is significantly higher in comparison to their counterparts (Mildren, 2008). The jury was instructed that if the accused was not guilty of murder that they should consider whether he was guilty of manslaughter. The paper argues that an understanding of the dynamics of this relationship helps explain the way in which attitudes and responses to events such as the occupation of Ipperwash Park can be understood. There are countless and painful examples of where the justice system has failed, including the cases of Colten Boushie, Tina Fontaine, Kristian Ayoungman, Everette Patrick, … Why did the prosecution seek a second-degree murder charge, and why couldn’t the jury compromise on a lesser charge? The western European model of criminal justice was forcibly imposed upon them, as was the Canadian state itself. Colten Boushie in a photo posted Nov. 6, 2011 (photo via Facebook), Ellie Hisama named dean of U of T’s Faculty of Music, ‘They shall not be forgotten’: U of T marks first anniversary of Flight 752 tragedy, Brain cancer linked to tissue healing: U of T researchers, AMD’s supercomputing partnerships with U of T, other universities to take centre stage at CES, Over-policing in Black communities to be explored in new U of T public health course, Urban studies course forges bond between students and seniors during COVID-19. 3, a presentation which was a part of the Indigenous Law Speaker Series. Canada has its first Indigenous justice minister, Jody Wilson-Raybould. Usually academics agree that we need to study something, but the failure of the justice system for Indigenous people has already been studied to death. Justice Mandamin stated that the worldviews between the Euro-Canadian sense of ‘Justice’ and the “Sacred Teachings,” the traditional framework upon which Indigenous… These Courts divert matters from the traditional criminal justice system within Canada. Indigenous concepts of justice, including restorative justice, have been implemented as both supplementary and alternative forms of sentencing with the Canadian criminal justice system. Nearly 20 years ago, Gladue reports were part of a series of justice changes that sought to reduce the vast over-representation of Indigenous people in the criminal justice system. I think this is obviously going to play out, but as a person who has taught criminal law since 1989, I've seen the ability of Parliament to amend the Criminal Code quickly when they get serious about an issue. Prime Minister Justin Trudeau has publicly declared his commitment to beginning a new prosperous relationship between Canada and its indigenous people. The goal, therefore, of Aboriginal justice reform must be self-government and a return to true restorative justice. Many say this trial has highlighted systemic problems with the justice system and the way it treats Indigenous people. Winnipeg, MB, Canada Locking up minor drug offenders will not close the 28.8 per cent income gap between Aboriginal people and other Canadians; it will only perpetuate the well-documented cycle of crime and poverty. The final report of the Aboriginal Justice Inquiry of Manitoba unequivocally summed up the relationship between Indigenous people and the justice system in the following statement: The justice system has failed Manitoba’s Aboriginal people on a massive scale. Correctional Investigator Howard Sapers concluded that these inequalities amount to “systemic discrimination.”. That’s a matter of provincial jurisdiction about getting the 200 prospective jurors into the room. As researcher Jessie Sutherland writes, it “co-opts First Nations leaders and community members into believing they are contributing to significant cultural renewal and self-determination. Published November 5, 2020 Updated November 9, 2020 . 1 Rudin J. Importantly, Canadian Justice, Indigenous Injustice provides crucial background that many who weighed in on Stanley’s criminal case failed to recognize: an analysis of Treaty 6, the legal agreements between Indigenous peoples and settlers on the land where Boushie was killed. 1 While Canada now imprisons fewer and fewer young people, more and more of those young people are Indigenous. I’m a little worried that this will just result in comments of sympathy as opposed to concrete action. The Canadian government has framed this disproportionate victimization and criminalization as being an "Indian problem." Gladue Court is also called Indigenous Peoples Court. That's because it's an offense under our Criminal Code for jurors to disclose any of their deliberations. Specifically, we need to talk about the racism that is so natural and so ingrained in much of the population that most of you don’t realize it is even there. The easiest reform – I don’t think it’s a sufficient reform, and I want to make that clear – the easiest reform is simply to amend the Criminal Code to abolish peremptory challenges. Canadas justice system is not for Indigenous people: Reasonable Doubt . Only this can correct the systemic discrimination that Aboriginal people face in the Canadian criminal justice system. Canada was created on top of Indigenous territories. Clearly the mainstream justice system is failing Aboriginal people, and the situation has reached a breaking point. They often try to incorporate Indigenous cultural practices and understandings of justice. I’m a little worried that in the last day or so public debate has really gotten sidetracked about whether Prime Minister Trudeau and Minister of Justice Wilson-Raybould have overstepped in their comments. Since 1989, 13 provincial and federal inquiries, commissions and studies have examined the issue of Indigenous peoples and the justice system in Canada. The relationship between Aboriginal people and the Canadian criminal justice system is broken, and evidence is mounting that a radical change is necessary. Is there a limit to how many peremptory challenges you can make? These include two in Alberta, one in Saskatchewan, one in Manitoba, and three at the federal level, including the Royal Commission on Aboriginal Peoples. Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. Furthermore, according to the National Council of Welfare, the increase in market output if educational and labour standards for Aboriginal people matched other Canadians by 2026 would be $36.5 billion. There’s been a big reaction to this verdict, but are we asking the right questions? Gladue Courts are Canadian courts that apply Canadian law. Clearly, the system lacks legitimacy in the eyes of Aboriginal people, and it is not hard to understand why. 1 EXECUTIVE SUMMARY The over-incarceration of Indigenous people in Canada is a crisis that begins earlier than adulthood as Indigenous youth (under 18) represent a disproportionate number of children behind bars. We know that three or four visibly Indigenous prospective jurors were subject to a peremptory challenge by the accused. But hopefully there will be some reform going forward. “That Indigenous Canadians are at a disproportionately higher risk of being involved in the criminal justice system, both as offenders and as victims, is an intolerable situation that our Government is working very hard to address. However, Canada’s federal government has begun to address the widespread neglect and failed policies felt by past generations of indigenous people. Like many problems, it's complex and the way to resolution starts with understanding the many issues. What’s more, numerous justice inquiries and commissions have found that racism is pervasive in Canada’s entire justice system; from police to prosecutors to judges. The reduction in government expenditures if these outcomes were achieved would be an additional $14.2 billion. We've known about those systemic problems for an awful long time. Although overt bias against Indigenous peoples in the justice system was more prevalent in the past, systemic discrimination remains a serious problem. Kent Roach (above) is a professor of law at U of T. He has represented Indigenous groups in interventions before the court, including in R. v. Gladue, which advises that lower courts should consider an Indigenous offender’s background when making sentencing decisions (Bernard Weil/Toronto Star via Getty Images). Witnesses are called to testify for or against the accused; that is, to criticize or explain the actions of another. Indigenous people are overrepresented in the Canadian criminal justice system as both victims/survivors Footnote 8 and accused/convicted persons. D ear Canada, We need to talk. So therefore you get an acquittal on murder, but the way it works is we have an extremely broad manslaughter offense in Canada. Brantford – Wilfrid Laurier University has launched the Gladue Principles: Indigenous Peoples and the Canadian Criminal Justice System courses to help students and professionals learn practice and theory related to this important aspect of Canada’s Criminal Code.. Ms. Moore was killed after a … Indigenous court provides a solution to overrepresentation in Canadian justice system. Gladue Court is a special court for people charged with a crime and who self-identify as Indigenous, Métis, First Nations, or Inuit. A separate report found that the city’s police had “failed to recognize ... against Indigenous people is not given the same level of care and attention in the Canadian justice system,” said 204-474-6535, U of M senate approves ‘compassionate grading’ plan, UMSU lobbies provincial, federal governments, UMSU to restart efforts to leave federation of students, UMSU announcement throws student clubs for a loop, on "Canadian justice system failing Aboriginal people", Math prof embroiled in court battle with university, Much-needed changes made for winter festival, Aboriginal Students Gathering at Migizii Agamik. National data that does exist to identify Indigenous people in the criminal justice system include the General Social Survey (GSS) on self-reported victimization, police-reported homicide statistics, and data on provincial/territorial and federal custody. Nearly 20 years ago, Gladue reports were part of a series of justice changes that sought to reduce the vast over-representation of Indigenous people in the criminal justice system. The reason I focused on jury selection and wrote about it in the Globe and Mail is that once you have 12 people impaneled on a jury, under Canadian law, rightly or wrongly, you’re never going to know why they reached that decision. Nova Scotia Premier Stephen McNeil apologized Tuesday to Black and Indigenous Nova Scotians for systemic racism in the province's justice system, and said the government is committed to reform. It was … The court system has also contributed, ironically, to the great injustice experienced by Indigenous peoples in Canada. A peremptory challenge is simply the accused looking at the prospective juror and basically saying “I don’t like the look of this person and I want that person kept off.”. The Supreme Court of Canada helped pave the way for a solution, but several communities including Williams Lake seem reluctant to apply a renewed Indigenous law approach . (2018). This turns traditional non-hierarchical Aboriginal justice on its head, and insidiously enforces western European values of hierarchy and authoritarianism in Aboriginal communities. In this case, because the accused was charged with second-degree murder and because they were going to impanel 14 jurors, not 12, because they wanted alternatives, both the accused and the Crown had 14. This is hardly surprising; the Harper Conservatives have done much to regress the Canadian justice system. Before contact with European powers, various Indigenous systems of justice functioned effectively. This review provides a critical overview of Indigenous peoples’ interactions with criminal justice systems. people and the criminal justice system, with particular emphasis on the situation of Aboriginal people in Ontario. The (in) justice system and Indigenous people. I don’t know whether communities in Saskatchewan were expecting a murder conviction, but personally I was surprised that the jury did not come back with a manslaughter conviction. This fact sheet uses data from the 2014 General Social Survey (GSS) on Victimization. That’s another reason that hasn’t been well picked up by the media as to why we might not have confidence in the jury. Decades ago, the Marshall Inquiry found the police and justice system were systematically biased against Black peoples and Indigenous peoples, but little has changed. After anger over Stanley’s acquittal spilled over into protests, and Boushie’s family went to Ottawa to advocate for legal reform, Prime Minister Justin Trudeau promised to “fix the system in the spirit of reconciliation.”. What are the chances the verdict will be appealed? Visit http://opencuny.org/whosewinnipeg2013/ for details. Excellent article. An October 2012 report by Canada’s Office of the Correctional Investigator found that Aboriginal people constitute only four per cent of the Canadian population but 23 per cent of the federal prison inmate population, and that the population of Aboriginal people incarcerated in Canada has increased by 40 per cent between 2001-2002 and 2010-2011. And it applies whenever someone is doing an unlawful act like careless use of a firearm, which seems to have been present here, pointing a gun at a person’s head. And so if we haven’t seen an amendment by the time Parliament dissolves for the summer, I think it's fair to say I'll be pretty disappointed. “It’s ironic that the Committee … Constitutionally, recognition was given to the inherent right of self-government in the failed Charlottetown Constitutional Accord.Nonetheless, discussions continue in attempting to seek this objective, including the realization of an independent or quasi-independent Indigenous justice system. I think this is an awakening, but I’m a little bit concerned, like so much these days, it’s becoming a polarized sort of debate. During jury selection, lawyers on both sides are given a set number of peremptory challenges, which allows them to strike a prospective juror without providing a reason. In this case, I think a troubling factor is the Crown didn’t ask the jurors who actually served on the jury whether racial bias against an Indigenous victim would prevent them from deciding the case impartially. I shall pass this onto the UN Special Rapporteur for Indigenous Rights. For example, each inmate in the correctional system costs the federal government approximately $110,000 per year, while one year of supervised release costs only $30,000. Numerous national inquiries, commissions, and investigations have all concluded that every level of the justice system has failed Indigenous peoples. Greg Horn. Underlying the move toward the establishment of an independent or quasi-independent Indigenous justice system is a recognition that there are certain values and customs historically attached to Indigenous communities. Kran, from the UN Human Rights Office, acknowledged that despite access to justice being “firmly rooted” in the Universal Declaration of Human Rights, the UN Declaration on the Rights of Indigenous Peoples and other human rights standards, “for many indigenous peoples obtaining access to justice may still seem like a distant goal.” “The Canadian criminal justice system has failed the Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions,” the commission said in 1996. These so-called restorative justice initiatives erode Aboriginal traditions by taking them out of their intended context and placing them within a western European system that is based on totally incompatible values. Get faculty and staff news delivered straight to your inbox. The history Canadians don’t like to tell is that Canada’s nation-building has come at the expense of its Indigenous peoples. Throughout Canada, a number of courts have been created that deal specifically with these forms of justice. It is not only a matter for concern, but an indicator of the health of our society as a whole. Furthermore, a recent report by Canada’s Parliamentary Budget Office found that between 2002 and 2012, justice spending increased by 23 per cent, while crime rates have simultaneously fallen that same amount. They represent only 3% of the Canadian adult population, 3 and this proportion has been increasing – in the late 1990s, it was slightly more than 10%. Background. 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